Southern Railway Co. v. Cherokee County, 177 N.C. 86 (1919)

Jan. 3, 1919 · Supreme Court of North Carolina

177 N.C. 86

SOUTHERN RAILWAY COMPANY v. CHEROKEE COUNTY.

(Filed 3 January, 1919.)

1. Constitutional Law — Statutes—Courts.

In construing an act of the Legislature with regard to ascertaining whether or not it is in conformity. with the State Constitution, the purpose of the courts is to sustain its validity if it can reasonably be done; but where there is an irreconcilable conflict, it is the duty of the Court, under its oath, to sustain the Constitution, not the will of the legislators, who are but agents of the people..

2. Taxation— Constitutional Law— Statutes— Limitation— General Laws— Special Laws.

Under the provisions of our Constitution, act 5, sec. 1, it is commanded that the poll tax shall always be equal to that on $300 valuation on property, and that it shall not exceed $2 upon the poll, and a statute which authorizes any county to levy a tax in excess of this constitutional limitation for general expenses, though called a “special” tax in the act, is unconstitutional and invalid.

3. Same — Schools.

Section 9, ch. 33, Laws of 1913, being a part of an act “to provide for a six-months school term in every public school district of the State,” but authorizing a tax in every county in the State for ordinary expenses, without enumerating them, is coextensive with the legislative power, as to the territory, people or property to be taxed, and the purpose is general, and not a special one, within the meaning of act 5, sec. 1 thereof.

4. Constitutional Law — Taxation—Statutes—Ratification.

Chapter 88, Laws of 1913, permitting the levy of a tax for the years 1913 and 1914, does not purport to authorize a levy of a tax in 1915 for school purposes in excess of the constitutional equation between the poll and the property tax (act 5, sec. 1), or a special levy for school purposes (act .5, sec. 6), and if otherwise, it would fall within the same condemnation as sec. 9, ch. 33, Laws of 1913, and ch. 109, Laws of 1917, cannot validate the levy of 1915 by ratifying ch. 33, Laws of 1913, because the Legislature had not the original authority to enact it.

5. Taxation — Payment—Protest—Statutes—Actions—Demand.

Where a taxpayer has paid his taxes authorized by an unconstitutional statute, under protest, and has complied with the provisions of Revisal, sec. 2855, which regulates and controls actions to recover illegal taxes paid under protest, it is unnecessary to the maintenance of his action to recover them that he follow the provisions of sec. 1384, requiring that he present his claim and mate his demand, etc.

Walker, J., concurs in result; Clark, C. J., dissenting.

ActioN to recover the' amount of certain taxes paid by the plaintiff, under protest, upon the ground that they were illegally levied and collected.

There was a judgment in favor of the plaintiff, and the defendant excepted and appealed.

A. B. Andrews and Dillard & Hill for plaintiff.

J. iS. Manning, Frank Nash, and J. D. Mallonee for defendant.

Allen, J.

In the year 1915 the county.of Cherokee levied and collected a tax of 2%.cents in excess of 66% cents on property of the value of $100. The plaintiff paid this tax on its property under protest, and this, action is brought to recover, the amount sq paid. The tax was not for schools, but was levied “for..the purpose of taking.up a note in bank made by the ¿nedecessor board and other current exjDenses” under the authority of ch. 33, sec. 9, Laws of 1913, which is as follows:

“Sec. 9. That the board of commissioners of any county in North Carolina be and they are hereby authorized and empowered to levy a special tax in excess of the constitutional limitation, not exceeding five (5) cents on the one hundred dollars ($100) valuation of all property listed for taxation in their respective counties, to provide for any deficiency in the necessary expenses and revenue of said respective counties which may be caused by the provisions of this act.”

These facts are found by his Honor and are. not controverted by the defendant, and they necessitate an inquiry into the constitutionality of the act of the General Assembly.

The text-writers and the decided cases agree that it is not only within the power, but that it is the duty, of the courts in proper cases to declare an act of the Legislature unconstitutional, and this obligation arises from the duty imposed upon the courts to declare what the law is.

The Constitution is the supreme law. It is ordained and established by the people, and all judges are sworn to support it. When the constitutionality of an act of the General Assembly is questioned, the courts place the act by the side of the Constitution, with the purpose and the desire to uphold it if it can be reasonably done, but under the obligation, if there is an irreconcilable conflict, to sustain the will of the people as expressed in the Constitution, and not the will of the legislators, who are but agents of the people.

The principle is well stated in 6 Euling Case Law, 72, that “Since the Constitution is intended for the observance of the judiciary as well as the other departments of government, and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands, and, therefore, when it is clear that a statute transgresses the authority vested in the Legislature by the Constitution it is the duty of the courts to declare the act unconstitutional, and from this duty they cannot shrink without violating their oaths of office. The duty, therefore, to declare the law unconstitutional in a proper case cannot be declined, and must be performed in accordance with the deliberate judgment of the tribunal in which the validity of the enactment is directly drawn in question.”

The first exercise of this power in this State was in 1787, in Bayard v. Singleton, 1 N. C., 42, and one of the latest was in 1912, in Comrs. v. Webb, 160 N. C., 594, in which an act was held unconstitutional by the unanimous opinion of the Court, written by the present Chief Justice.

In Sutton v. Phillips, 116 N. C., 504, in an opinion written by Chief Justice Clark, the Court says: “While the courts have the power, and it is their duty in proper cases; to declare an act of the Legislature unconstitutional, it is a well-recognized principle tbat tbe courts will not ■declare tbat tbis coordinate branch of tbe government bas exceeded tbe powers vested in it unless it is plainly and clearly tbe case”; and tbis language was approved and affirmed in tbe case of In re Watson, 157 N. C., 349.

In 1913 an act of tbe General Assembly was declared to be unconstitutional in Asbury v. Albemarle, 162 N. C., 248, and in Sewerage Co. v. Monroe, 162 N. C., 275, and between these cases, running from tbe first volume of our Beports to tbe 162d, covering a period of one hundred •and twenty-five years, there could be cited fifty or more cases in which •■acts of tbe General Assembly have been declared unconstitutional, and we find no judicial opinion to tbe contrary.

De Tocqueville, tbe eminent French philosopher, speaking of our Constitution and of tbe powers of tbe courts, says in Democracy in America, p. 98 et seq.: “An American Constitution is not supposed to be immutable, as in France, nor is it susceptible of modification by tbe ordinary powers of society, as in England. It constitutes a detached whole, which, as it represents tbe determination of tbe whole people, is no less binding on tbe legislator than on tbe private citizen, but which may be altered by tbe will of tbe people in predetermined cases, according to •established rules. In America tbe Constitution may, therefore, vary; but as long as it exists it iá tbe origin of all authority and tbe sole 'vehicle of tbe predominating force. ... In tbe United States tbe Con•stitution governs tbe legislator as much as tbe private citizen; as it is 'the first of laws it cannot be modified by a law, and it is therefore just tbat tbe tribunals should obey tbe Constitution in preference to any law. Tbis condition is essential to tbe power of tbe judicature, for to select tbat legal obligation by which be is most strictly bound is tbe natural right of every magistrate. ... I am inclined to believe tbis practice of tbe American courts to be at once tbe most favorable to liberty as well as to public order.”

"We must then examine tbe sections of tbe Constitution relating to 'taxation for tbe purpose of seeing if tbe General Assembly bas transcended tbe limitations on its powers to be found in tbat instrument. .Art. Y, sec. 1, is as follows: “Tbe General Assembly shall levy a capitation tax on every male inhabitant of tbe State over twenty-one and under fifty years of age, which shall be equal on each to tbe tax on property valued at three hundred dollars in cash. Tbe commissioners •of tbe several counties may exempt from capitation tax in special cases, ■on account of poverty and infirmity, and tbe State and county capitation ■tax combined shall never exceed two dollars on tbe bead.”

Tbis section establishes tbe equation between property and tbe poll and limits the power to levy State and county taxes on property to $2 on property of the value of $300, or 66% on $100.

“It is too plain to admit of argument tbat the intent of this section was to establish an invariable proportion between the poll tax and the property tax, and that as the former is limited to $2 on the poll, so is the latter to $2 on the $300 valuation of property.” This was .said by Rodman, J., a member of the convention which framed the Constitution, in R. R. v. Holden, 63 N. C., 427.

This section commands two things:

“1. That the poll tax-shall always be equal to that on $300 valuation of property. This has been called the equation of taxation.

“2. That the State and county poll tax shall not exceed $2. This fixes the limit of taxation on polls, and consequently on property.

“These two directions are equally definite and positive; they are in no wise inconsistent with each other; it is impossible that one has any more favor or sanctity than the other merely because it comes earlier or later in the sentence; they must be equally binding on the Legislature.” Rodman, J., in Winslow v. Weith, 66 N. C., 432.

“It is well settled that, for the ordinary expenses of government, both State and county, the first section of Article Y of the Constitution places the limit of taxation and preserves the equation between the capitation and the property tax — the capitation tax never -to exceed $2 and the tax upon property valued at $300 to be confined within the same limit.” Board of Education v. Comrs., 111 N. C., 580.

“The taxes which the commissioners are empowered to levy have their limitations in the Constitution, and these cannot be exceeded ‘except for a special purpose and with the special approval of the General Assembly.’ Const., Art. V, secs. 1 and 6. The construction of these clauses has been fixed by a series of decisions, from one of which (French v. Comrs., 74 N. C., 692) we extract the emphatic declaration of Bynum, J.: ‘It admits of no dispute now that taxation for State and county purposes combined cannot exceed the constitutional limitation for their necessary expenses and new debts.’ Trull v. Comrs., 72 N. C., 388; Clifton v. Wynne, 80 N. C., 145; Mauney v. Comrs., supra.” Cromartie v. Comrs., 87 N. C., 139.

These authorities establish beyond controversy that the tax is illegal, under section 1 of Article Y, because it exceeds the limitation on State and county taxes, and the defendant, if it has any standing in court, must rely on section 6 of Article Y, which permits the county commissioners to exceed the constitutional limitation in section 1 “for a special purpose and with the special approval of the General Assembly.”

These two sections must be. considered and. read together with the purpose in view of giving effect, to both, and a construction must be avoided wbicb will make one destructive of tbe other, which would be the result if the commissioners could exceed the constitutional limitation under authority of section 6 for general purposes, and under general laws, because under such a construction the General Assembly could levy a State tax up to the limitation under section 1, and then pass a general law under section 6 allowing the counties to levy the same tax for county expenses.

.The first section “was inserted in the Constitution of 1868 as a guarantee to the property holders of the State that they would not be oppressed by inordinate taxes laid by representatives elected by the newly enfranchised blacks, who had small property to be taxed and whose representatives might otherwise be tempted to levy excessive taxes on property (Rodman, J., 63 N. C., at p. 427), and for nearly thirty years since this breakwater was put into the Constitution it has never been lost sight of” (Clark, J., in Russell v. Ayer, 120 N. C., 191), and section 6 for the purpose of providing for an emergency that could not be reasonably anticipated, and as a safeguard against increasing taxation hastily and without due consideration, and to furnish publicity, a special act stating the special purpose is required.

Does section 9 of chapter 33 of the Laws of 1913 come within the classification of special laws, and is a tax for current expenses of a county a special purpose? It is a part of an act “to provide for a six-months school term in every public school district of the State,” and the section authorizes a tax in every county in the State for ordinary expenses, without enumerating them, thus making it coextensive with legislative power, so far as territory or the people or property to be affected are concerned, and the purpose is general.

“A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things as a class is a special one. Ewing v. Hoblitzelle, 85 Mo., 64, 78; Schmalz v. Wooley, 56 N. J. Eq., 649; In re New York Elevated R. Co. (N. Y.), 3 Abb. N. C., 401, 417, 422; Gay v. Thomas, 5 Okla., 1; Clark v. Finley, 93 Tex., 171; Hamman v. Central Coal and Coke Co., 156 Mo., 232; State ex rel. Harris v. Herrmann, 75 Mo., 340, 346; Lynch v. Murphy, 119 Mo., 163; Sawyer v. Dooley, 21 Nev., 390; Herbert v. Baltimore County Comrs., 97 Md., 639.

“Special laws are those made for individual cases, or for less than a class requiring laws to its peculiar conditions and circumstances. Vermont Loan and Trust Co. v. Whithed, 2 N. D., 82; Guthrie Daily Leader v. Cameron, 3 Okla., 677; Maxwell v. Tillamook County, 20 Ore., 495 (quoting Healey v. Dudley (N. Y.), 5 Lans., 115; Suth. St. Const., par. 127); Groves v. Grant County Court, 42 W. Va., 587 (citing 1 Bl. Com., 196).

“A special statute is one operating upon one, or a portion of a class, instead of upon all of a class. S. v. Irwin, 5 Nev., 111, 120.

“ ‘Local or special legislation,’ according to the well-known meaning of the words, applies exclusively to special or particular places, or special and particular persons, and is distinguished from a statute intended to be general in its operation and that relating to classes of persons or subjects. Stone v. Wilson (Ky.), 39 S. W., 49, 50.

“ ‘Private or special statutes,’ says Sedgwick in his work on Statutory and Constitutional Law, ‘relate to certain individuals or particular classes of men.’ In Smith on Constitutional Construction it is said: ‘The distinction between-public and private statutes is this: A general or public act is a universal rule that regards the whole community, but special or private acts are rather exceptions than rules, being those which operate upon private persons and concerns.’ Page 917, par. 802; People v. Wright, 70 Ill., 388, 298.

“Whether or not an act of the Legislature is special or general, within a constitutional provision, is not to be determined by the form of the act, but by what in the ordinary course of things must necessarily be its operation and effect. If this operation and effect must necessarily be special, the act is special, whatever may be its form; but if, on the other hand, the act has room within its terms to operate on all of a class, present and prospective, and not merely on one particular thing, or on a particular class of things, existing at the time of its passage, the act is general. City of Topeka v. Gillett, 32 Kan., 431; S. v. Hunter, 38 Kan., 578.” Words and Phrases, V. 7, 6577 et seq.

There are two eases in our own Beports which seem to be decisive of the whole question. The first is Williams v. Comrs., 119 N. C., 520, approved in Herring v. Dixon, 122 N. C., 423, in which it was held that a statute authorizing a special county tax for the purpose of maintaining public ferries, building roads, and meeting other current expenses was not for a “special purpose” within the meaning of section 6 of Article Y of the Constitution, and that a tax levied thereunder in excess of the constitutional limitation of section 1 was void; and the second, Bennett v. Comrs., 173 N. C., 629, which says that a statute “conferring on county commissioners the power to borrow money for the necessary expenses of the county and provide for its payment” “neither is, nor does it purport to be, a ‘special act and for a special purpose’ within the meaning of the constitutional provision.”

We are, therefore, of opinion the tax has not been levied under a special act or for a special purpose, and this seems to have been the opinion of the General Assembly of 1917 and of those in charge of the educational interests of the State, as otherwise there was no necessity for submitting to a Arote the constitutional amendment providing for a six-months school term. Why take the trouble to amend the Constitution, and why run the risk of a vote of disapproval, if it was within the power of the General Assembly to increase the State tax for schools and t'o authorize the counties to levy taxes in excess of the constitutional limitation for ordinary and necessary expenses; and this is what the-act of 1913 purports to do.

Another act of 1913 (chapter 88) has been referred to in the argument, but it only permits the levy of a tax for the years 1913 and 1914, and the time for acting thereunder had expired when the tax of 1915,. which is in controversy in this action, was levied; nor did the commissioners of Cherokee purport to act under chapter 88. The amendatory act of 1917 (chapter 109) is also ineffective to validate the tax levy of 1915. In the first section it amends chapter 88, Laws of 1913, by making-the tax for current expenses of the county in excess of the constitutional limitation an annual tax, and would fall under the same condemnation as section 9 of chapter 33, Laws of 1913, and-in the -second section it undertakes to ratify levies for 1915 and 1916, but the General Assembly cannot ratify an act which it could not authorize originally.

The defendant further contends that this action cannot be maintained,, although the tax is illegal, because of the failure to present the claim and make demand as required by section 1384 of the Kevisal, but the-plaintiff has followed and complied with section 2855 of the Kevisal, which regulates and controls actions brought to recover illegal taxes, paid under protest.

Affirmed.

Waukee, J.,

concurring in result: I agree fully with the Court in its. opinion, as delivered by Justice Allen, that the tax provided for in the-statute is for a general and not a special purpose, and therefore is not authorized by the Constitution under Art. V, secs. 1 and 6. But I do-not agree that section -6 permits a tax exceeding the constitutional limit as fixed by section 1. It was intended to establish the proportion between State and county taxation, providing, and providing only, that the latter shall not exceed the double of the former except for a special purpose and with special approval of the General Assembly. There is nothing said about exceeding the limit of taxation, and Uo distinction is. made in section 1 or section 6 between ordinary and extraordinary expenses. The language is: “The General Assembly shall levy a capitation tax on every male inhabitant of the State over twenty-one and under fifty years of age, which shall be equal on each to the tax on property valued at three hundred dollars in cash (clause as to exemptions omitted), and the State and county capitation tax combined shall, never -exceed two dollars on the head.” (Italics ours.)

I will not repeat bere wbat was .said by me in Collie v. Comrs., 145 N. C., at p. 177, and later in Moose v. Comrs., 172 N. C., 451. We are not permitted to construe tbe Constitution by a consideration of subsequent conditions and circumstances, and if tbe growth and development of tbe State, since it was adopted, bas made necessary a bigber limit, tbe remedy is not in interpretation, but by amendment as provided in tbe instrument itself. For some time after its adoption, there was plenty of room within tbe limit it prescribed for tbe counties to more than double tbe State tax; but however this may have been, we must ascertain tbe meaning of tbe Constitution by considering only its language. These principles are so very elementary as not to require further discussion or tbe citation of authority. I considered this question fully in tbe cases cited above and will not go over tbe argument again.

I agree' with tbe statement in tbe opinion that this Court bas tbe power to declare a statute invalid as being in conflict with tbe Constitution. To be more accurate, it is not that tbe statute conflicts with tbe Constitution, but that tbe Legislature bas exceeded its power as fixed by it, and to tbe extent that it bas done so tbe legislation is unwarranted, and therefore invalid. Whether in any particular case tbe Legislature was without authority under tbe Constitution to act is so plainly and palpably a question of law that it would be more than idle or vain to demonstrate it. It is really not now an arguable question. Standard text-writers, commentators and publicists, and also tbe largest majority of tbe courts and jurists, agree that this question bas been set at rest by a long line of cases in tbe Federal and State jurisdictions, which have virtually closed tbe door to all discussion. If any Court in tbe Union bas been thoroughly and irrevocably committed to this doctrine, it is this Court. If it was not tbe first, it was certainly among tbe first to announce it as a clear and unquestioned principle in constitutional law. Tbe Legislature bas no more right to act beyond tbe scope of its power, as limited by tbe Constitution, than this Court bas to exceed tbe jurisdiction allotted to it in tbe distribution of governmental powers made by that instrument to tbe three coordinate departments — that is, legislative, executive, and judicial — and when it attempts to do so, all that it does beyond that limit is just as void as would be a judgment of this or any other’ Court rendered in excess of its jurisdiction.

Tbe legislative power not granted in tbe Constitution, expressly or by clear implication, was retained by tbe people, to be exercised or delegated as they may see fit. Tbe people did not exhaust all of their sovereign power when they framed the Constitution, but there was a large residue still retained by them. Tbe Legislature'is not, therefore, a sovereign body with plenary powers, but within tbe proper and prescribed limit, as set by tbe Constitution, it is entitled to have — and so far as this Court is concerned will have — perfect freedom of action.

Among the powers denied to it is the one now being considered; that is, the power'to levy taxes beyond the limit fixed' by the Constitution in Article V, sections 1 and 6.

It is strangely claimed by some that it has unlimited right to decide for itself, and finally, whether it has a given power, and if this be so, it would manifestly result that the Constitution, instead of being a charter of fimdamental principles and policy, would have no more binding force and effect than a statute, as it could be repealed or set at naught, according as the Legislature might will, meaning one thing today and another thing at some day in the future, or nothing at all, as partisan whim or eaprice might determine. Such a doctrine is wholly inadmissible and is entirely at variance with every proper conception and notion of constitutional government. It has been so held by nearly all, if not all, of the American courts. As early as 1780 the Supreme Court of New Jersey, in Holmes v. Walton, Amer. His. (Vol. 4), 456, laid down this doctrine, and that case was followed in New York by Rutgers v. Waddington, Fiske Cr. Period, Am. His., p. 127, decided in 1784, and in this State by Bayard v. Singleton, 1 N. C., 42, cited in the opinion of the Court.

The same Constitution that created the Legislature and gave it the power to legislate also created this Court, and expressly prescribed its jurisdiction, giving it final, appellate jurisdiction of matters of law and legal inference. Art. IV, sec. 8. And this brings us to consider the conclusive argument of the illustrious Chief Justice Marshall in Marbury v. Madison, 1 Craud (U. S.), 137, who said, when speaking for the Court: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution — if both the law and the Constitution apply to a particular case, so that the courts must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law — the courts must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” That case has been approved and its doctrine fully accepted and followed by practically all the courts and text-writers.'

This comports with the language of'our Constitution, which requires us to decide ripoh “all"questions of law or legal inference.” We must needs first" determine what the law 'is before we can' pass upon it or apply if to'individual "cases dr controversies, and in discharging'this important duty, or in exercising our jurisdiction, we must necessarily decide, when the validity of a statute is challenged or brought into controversy, whether it is valid or not, just as we would do if a judgment of a court of this or any other State is attacked for want of the necessary power or jurisdiction to render it; we must say whether it is valid, or not.

Let me quote the impressive words of another great constitutional lawyer, Judge Cooley, in his standard work on. Constitutional Limitations. He said at p>. 228: “The courts sit not to review or revise the-legislative action, but to enforce the legislative will; and it is only where-they find that the Legislature has failed to keep within the constitutional limits that they are at liberty to disregard its action; and in doing so-they only do what every private citizen may do in respect to the mandates when the judges assume to act and to render judgment or decrees-without jurisdiction. In exercising this high authority the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the Legislature is held void, it is not because the-judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives-expressed in any law.”

To the same effect is the Federalist (Dawson’s Ed.), No. 78: “There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor or commission under which it is exercised is void. No legislative act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than the principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that mere men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” And Judge Dicey observes that it is now considered not only the right but the duty of every judge in the United States to treat as void any enactment which violates the Constitution, and Judge Cooley adds that it is now generally agreed that the courts cannot properly decline to overrule the acts of the Legislature when it has exceeded the authority set by the Constitution to its limits. Dicey’s Law of the Constitution (2d Ed.), 125.

As early as 1795, Justice Patterson of the United States Supreme-Court said: “I take it to be a clear position that if a legislative act impugns a constitutional principle, the former must give way and be rejected on the score of repugnance. I hold it to be a position equally clear and sound that in such a case it will be the duty of the Court to adhere to the Constitution and to declare the act null and void.” Vanhorne's Lessee v. Dorrance, 2 Dall. (U. S.), 304. The whole subject is-treated very fully and very clearly in Modern Am. Law (Vol. XI), pp. 64 to 80.

It hardly need be said that no Court would declare a statute void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt. It need only be added that this Court, in numerous decisions, has exercised this power without dispute or cavil, and for many years since Bayard v. Singleton was decided. The following are examples: Jones v. Crittenden, 4 N. C., 55 (suspension of payments of debts); Trustees of University v. Foy, 5 N. C., 59 (resuming escheated lands); Allen v. Peden, 4 N. C., 442 (emancipating slaves without owner’s consent); Robinson v. Barfield, 6 N. C., 391 (validating improperly executed deeds); Bank of the State v. Bank of Cape Fear, 35 N. C., 75 (impairing obligation of contract as to payment of bank notes); S. v. Moss, 47 N. C., 66 (jurisdiction of intendant of police of Charlotte); Stanmire v. Taylor, 48 N. C., 207 (grant of land already sold by State) ; Barnes v. Barnes, 53 N. C., 366 (stay law) ; King v. Comrs. of Lincoln, 65 N. C., 603 (tax collector case); Wesson v. Johnson, 66 N. C., 189 (common-law right of dower as to prior marriages); Galloway v. Chatham R. R. Co., 63 N. C., 147 (State subscription to railroad company stock); People v. Bledsoe, 68 N. C., 457 (government of penitentiary) ; Bailey v. Caldwell, 68 N. C., 472 (compensation of C. C. P. commissioners) ; People v. McGowan, 68 N. C., 520 (election of Keeper of Capitol) ; Latham v. Whitehurst, 69 N. C., 33 (requiring mortgage debts to be reduced to judgment). There areas many more cases, since decided, which expressly acknowledge this power without a dissenting voice, and some of comparatively recent date.

It also must be remembered that every case in which the question of the validity of a statute is considered by the Court, although the decision be in favor of it, is a concession of the principle that the Court may pass upon its constitutionality and declare it void in a proper ease, for why discuss the question if the Court cannot decide upon it? See the Constitution of North Carolina annotated by Connor and Cheshire, p. 543, for cases.

In Purnell v. Page, 133 N. C., 125, it was held that the income of a Federal judge could not be taxed by the State, and vice versa, and that any attempt by the Legislature to impose such a tax would be futile, and when properly questioned would be declared void, and this position was conclusively maintained in a strong and able argument by the present Chief Justice, who referred to the opinions of Attorney-General Batchelor, adopted by the Supreme Court, composed then of Nash, Chief Justice, and Pearson and Battle, Judges (4 N. C., 555), and that of Attorney-General Gilmer, 131 N. C., 692, approved by the Court as denying the power of the Legislature to tax the salaries of the judges, which would plainly be a diminution of them, forbidden by the Constitution.

It may be taken, therefore, as finally settled by this Court that the power to declare a statute invalid, as being unauthorized by the Constitution, exists, and that while the consideration of the question should be approached with great caution and the question itself examined with the most careful scrutiny, it will be pronounced invalid if it so clearly and obviously appears to be so that all reasonable doubt has been excluded. The Constitution is of paramount authority, and prescribes the rule to all departments of the government, to this as well as to the others, and each of them owes to it submission and obedience, and we should most willingly and cheerfully acknowledge its supremacy and render our allegiance to it accordingly as the highest law. Any other course, instead of perpetuating the blessings of the government, so happily designed by our forefathers and transmitted to us, would eventually lead to confusion, disorder and anarchy. Our oath, so carefully and impressively framed, binds us most solemnly to the performance of this higher duty to preserve and maintain the fundamental law.

Clark, C. J.,

dissenting: In August, 1915, the Board of Commissioners of Cherokee-regularly levied 19 cents for county general tax and (under the authority of chapter 33, Laws 1913) a special tax of 2% cents on $100 valuation of all property listed in Cherokee County. This special tax was levied as authorized by the General Assembly by section 9, chapter 33, Laws 1913, and chapter 88, Laws 1913, and the amendments thereto, for the purpose of providing for the deficiency caused in the revenue of said county in 1914 by said chapter 33 and by section 3, chapter 201, Laws 1913, which rendered it necessary in order to take care of certain outstanding indebtedness of Cherokee which could not be met for the year 1914 out of the revenue raised by the 19-cent levy for said year.

The property of the plaintiff, the Southern Railway Company, in Cherokee County, consisting of some twenty-four miles of railroad track and its proportion of the equipment, engine, cars and investments and its franchise, was assessed for taxation at more than a million dollars, and the 2% cent special tax levied against this property in aid of education (as against all other property holders in the county) amounted to $275.56. This action is brought to recover said sum which had been paid into the county treasury by the railroad company.

Said section 9, chapter 33, Laws 1913, provides: “The board of commissioners of any county in North Carolina be and they are hereby authorized and empowered to levy a special tax in excess of the constitutional limitation, not exceeding five (5) cents on the one hundred dollars ($100) valuation of all property listed for taxation in tbeir respective counties, to provide for any deficiency in tbe necessary expenses and revenue of said respective counties wbicb may be caused by tbe provisions of tbis act.”

Said act was passed to increase tbe revenue of tbe State for school purposes so as to provide for a six-montbs school term. Said act describes tbe levy authorized to be “a special tax,” and tbe “special purpose” for wbicb it is authorized is recited to be “to provide for any deficiency in tbe necessary expenses and revenue” of any county wbicb might be caused by raising tbe State levy to 47% cents. Not a dollar of tbis $275 was spent for schools, but was spent exclusively for other necessary county expenses.

In Connor & Cheshire on Cons., 281, it is said: “Tbe equation and limitation placed upon taxation by Art. Y, sec. 1, has no application to taxes levied hereunder for a special purpose, when levied with tbe special approval of tbe General Assembly,” citing Board of Education v. Comrs., 137 N. C., 310; Jones v. Comrs., 107 N. C., 248; Street v. Comrs., 70 N. C., 644; R. R. v. Holden, 63 N. C., 410; R. R. v. Comrs., 148 N. C., 220. Tbis has always been tbe necessary and indeed tbe only resource when a county has gotten in debt for necessary expenses. There is no other way for tbe county to redeem its credit. Tbis deficit was not for schools but for tbe necessary expenses of tbe county, wbicb was not allowed to levy over 19 cents by reason of tbe State tax.

Tbe Constitution, Art. Y, sec. 6, prescribes: “Tbe taxes levied by tbe commissioners of tbe several counties for county purposes shall be levied in like manner with tbe State taxes, and shall never exceed tbe double of tbe State tax, except for a special purpose, and with tbe special approval of tbe General Assembly.” Adding tbis 2% cents to tbe 19 cents already levied for county purposes makes a total of 21% cents. Tbis levy, far from exceeding “double tbe State tax,” tbe limit named in tbis provision, is in fact considerably less than one-balf tbe State tax, wbicb was 47% cents on tbe $100. -Laws 1913, eb. 201, sec. 3.

Tbe tax here in question is authorized for a special purpose “to provide for any deficiency in the necessary expenses and revenue of said respective counties,” and received tbe special approval of tbe General Assembly, sec. 9, eh. 33, Laws 1913. Tbis levy, therefore, is exactly within the authority of the General Assembly and tbe restrictions of tbe ■Constitution of tbe State. Art. Y, sec. 6, above set out.

It is alleged, and correctly, that tbe insufficient levy of 19 cents to defray tbe county expenses was due to tbe fact that tbe State, in order to make adequate provision for tbe six-montbs schools, raised tbe tax levy for all State purposes to 47% cents, and hence tbe margin between that and tbe normal 66% cents left only 19 cents for tbe counties. It became necessary, as is found as a fact by tbe county commissioners and also by tbe judge, and is not controverted, to levy tbe extra 2% cents per $100 in order to defray tbe county expenses for necessary purposes. Tbis levy in excess of tbe 19 cents being for necessary purposes did not require a vote of tbe people.

Tbe levy of tbis tax in 1915 is stated by tbe-board, and is found as a fact by tbe court, to be for tbe special purpose of taking up a note in bank made by tbe board of commissioners for a deficiency in meeting tbe necessary expenses of tbe county for 1914, and was authorized by chapter 88, Laws 1913, which recites tbe fact that tbe increase of taxes for tbe purpose of increasing school facilities would probably “leave tbe counties without sufficient revenue with which to pay their current necessary expenses.” It therefore, has tbe special approval of tbe General Assembly. Why refund it to plaintiff when tbe county must again collect it?

It is true that tbe General Assembly of 1913 increased tbe general State taxes 5 cents for tbe purpose of increasing tbe terms of the public schools to six months, but if there is any unconstitutionality it attaches to tbe increase of tbe general State tax by tbis 5 cents, and there can be no unconstitutionality in allowing tbe counties to levy additional taxes for necessary county purposes when tbe deficiency is not caused by county action or lack of legislative special approval. Tbe complaint, if any, of tbe plaintiff should not be directed against tbe levy of tbis special tax for necessary county purposes with tbe special approval of tbe General Assembly, but against tbe legality of tbe 5-cent additional State tax levied by tbe Legislature for State purposes. In tbe language of tbe market-place, tbe plaintiff “has tbe wrong sow by tbe ear.”

Tbe county must pay its necessary expenses or it cannot continue to discharge its legitimate functions. Its credit will be destroyed and tbe county government will become inefficient. Its commissioners have not levied to exceed double tbe State tax, and tbe 2% cents was for a special purpose, for which tbe General Assembly has given its special approval. Tbe deficiency was caused by tbe action of tbe General Assembly, which has not been called in question in tbis or any other proceeding.

North Carolina not only stands at tbe foot of tbe States in illiteracy and in tbe shortness of school terms, but its levy of taxation for schools, for good roads, and public health is the lowest of any State in the Union, being less than half the average for such purposes levied by the other States of tbe Union. To meet tbis situation and remove tbis reproach, and enhance tbe welfare of tbe people whom they represent, the General Assembly of 1913 increased the school term to six months. And knowing that tbe appropriation therefor would render tbe margin left for county purposes insufficient for their administration, tbe General A&-sembly gave its special approval for tbis additional taxation by tbe counties. If there is any nnconstitutionality in tbe action of tbe General Assembly it is in tbe levy for tbe six-montbs schools by tbe General Assembly, wbicb is not impeached by tbis proceeding.

Tbe people of tbe State, by a vote of more than 100,000 majority, have endorsed tbe action of tbe General Assembly of 1913, wbicb has been followed by tbe General Assemblies of 1915 and 1917, by adopting tbe constitutional amendment requiring six-months, term for public schools. At tbis term we have bad three cases calling in question special taxation to extend school facilities. In each of tbe three tbis Court has invalidated tbe effort to do so. In Williams v. Polk County tbe act of tbe General Assembly authorizing tbe special tax was, however, not set aside by tbe Court, but tbe result of tbe election was invalidated because of an illegality.in tbe manner of bolding tbe election, and tbe Court was unanimous. In Hill v. Lenoir, tbe act of 1911 authorized any county to vote a special tax for school purposes, as tbe General Assembly has a right to do under tbe Constitution, and prescribed that at such election, if tbe entire county gave a majority for such tax, it should be a county measure, but that if it did not carry for tbe entire county it should be valid for each township in wbicb such measure received a majority. Tbis manner of voting was a matter within tbe good judgment of tbe General Assembly, and there was no provision of tbe Constitution pointed out wbicb forbade tbe Legislature to authorize such manner of voting,'nor any provision of tbe Constitution authorizing tbis Court to invabdate tbe action of tbe General Assembly. Besides, tbe act was a general one passed in 1911, and under it elections have been held in many counties, in some of wbicb tbe counties, and in some townships, bad adopted tbe special tax. A dissent was entered by me as to that decision and in tbis case.

Tbe Supreme Court of tbe United States has repeatedly said that it would not bold an act unconstitutional unless it was so “beyond all reasonable doubt.” Ogden v. Saunders, 12 Wheaton, 270; S. v. Perley, 173 N. C., 791; Cooley Cons. Lim. (7 Ed.), 254. For that reason, besides for those given in tbis dissent, it would seem that these measures wbicb tbe General Assembly has enacted to give tbe children of tbe State a better opportunity for an education should not be disapproved and invalidated by tbis Court.

On tbe face of tbe Federal and State Constitutions it was' clearly contemplated that tbe legislative department should be tbe guardian of tbe Constitution fully as much as tbe judicial, and that legislation held by it constitutional should be conclusively so, as in all other countries, subject only to tbe veto of tbe executive (where tbis is given) and to the' approval of tbe sovereign at tbe ballot box. There is certainly no indication given in any Constitution of sux>eriority or supremacy of tbe judicial over tbe legislative department.

Those who believe in the supremacy of tbe courts over legislation and the law-making body stress tbe fact that tbe judges are sworn to obey the Constitution, and therefore they must judge whether the Legislature has complied with the Constitution or not. But the members of the Legislature and of Congress are equally sworn to obey the Constitution, and therefore they, and not the courts, are charged with the duty of deciding whether'legislation is in accordance with the Constitution or not. For the same reason, the Legislature is not empowered to hold that decisions. of the courts in matters committed to them are unconstitutional.

If there was any provision in the State Constitution which empowers the Court to go behind such finding of the Legislature, it would be in effect giving an appeal from the Legislature to the Court. On an appeal from the Superior Court to this Court, five judges review the trial judge to insure uniformity in the law, because the Constitution confers the power. There is no such provision in the State Constitution as to the Legislature and the jurisdiction of the Court to go behind the finding by the two Houses of the General Assembly that an act is in conformity to the Constitution is logically and necessarily based- upon the assumption that the Legislature has either ignorantly or intentionally violated the Constitution, and that therefore, of necessity, the Court, by reason of its superiority of wisdom or virtue, must have power to invalidate the action of the law-making body. This assumption has not been warranted by experience, and has no foundation in fact.

On an average, two-thirds of each House of the General Assembly and of both Houses of Congress have usually been lawyers. They have the intelligence to read the Constitution and the patriotism and integrity to observe it. The numerous instances in which the courts have overruled their own preyious decisions on so-called “constitutional questions” (and others in which they should, or may yet, do so) are a judicial holding that the courts themselves have acted unconstitutionally. Certainly when the far greater number of lawyers in the law-making body, entrusted by the Constitution to make the laws in the discharge of the duty committed to them, hold an act constitutional, and a minority of the Court agree in that view, it cannot be held that the Legislature, “beyond a reasonable doubt,” either ignorantly or intentionally, have violated their oaths to support the Constitution.

In the Convention at Philadelphia in 1187, which created the Federal Constitution, James Madison (afterwards President) and James Wilson (afterwards Justice of the U. S. Supreme Court) offered an amendment that all bills should be submitted and approved by the courts before being enacted. Though presented and pressed with, great force, the proposition was voted on four times, and on each occasion defeated, receiving at no time the vote of more than three States. The authority of the courts to invalidate an act of Congress or State Legislature is not expressed in the Federal or any State Constitutions, but is derived from the decision in Marbury v. Madison by the U. S. Supreme Court in 1803, deducing it as a legal inference. It was denied then by President Jefferson, the founder of one of the great parties, and later by Abraham Lincoln, the leader of another. In view of the increasing number of cases involving matters of public policy in which the views of the courts are such as to invalidate legislation it may be wise (if the courts are to continue to assert this supreme and irreviewable power over legislation) to submit legislation to the courts for approval, as suggested at Philadelphia, before it is enacted, instead of having it vitiated afterwards. It would be a great economy of time and expense.

In this State, a somewhat similar decision, derived, like Marbury v. Madison, by legal deduction or inference, in Hoke v. Henderson, 15 N. C., 1 (Dec., 1833), for seventy years was an obstruction to legislation and a constant source of conflict between the Legislature and the judiciary until after being affirmed sixty times, it was finally overruled as unfounded in Mial v. Ellington, 134 N. C., 131 (1 Dec., 1903). One Federal Supreme Court decision was corrected by the Eleventh Amendment and another by the Seventeenth Amendment, and in the Adamson Law case the Court overruled, and thereby held unconstitutional, its previous decision in the Lochner case. Courts make errors as well as Legislatures and Congress (as shown by overruling decisions and others which should be overruled), and their correction by constitutional amendment is too dilatory, for a progressive age and people and too costly a deference to a merely hypothetical and supposed infallibility in the courts.